Notice: Fourth Circuit Local Rule 36(c) States That Citation of Unpublished Dispositions is Disfavored Except for Establishing Res Judicata, Estoppel, or the Law of the Case and Requires Service of Copies of Cited Unpublished Dispositions of the Fourth Circuit.frank E. Kessler, Jr., Petitioner-appellant, v. George Deeds, Warden, Keen Mountain Correctional Center,respondent-appellee, 83 F.3d 415 (4th Cir. 1996)

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US Court of Appeals for the Fourth Circuit - 83 F.3d 415 (4th Cir. 1996) Submitted: April 15, 1996. Decided: April 25, 1996

Appeal from the United States District Court for the Western District of Virginia, at Roanoke. Jackson L. Kiser, Chief District Judge. (CA-95-89-R)

Frank E. Kessler, Jr., Appellant Pro Se. Thomas Drummond Bagwell, Assistant Attorney General, Richmond, Virginia, for Appellee.

W.D. Va.


Before ERVIN and MOTZ, Circuit Judges, and CHAPMAN, Senior Circuit Judge.


Appellant seeks to appeal the district court's order denying relief on his 28 U.S.C. § 2254 (1988) petition. We have reviewed the record and the district court's opinion accepting the recommendation of the magistrate judge and find no reversible error. Accordingly, we deny a certificate of probable cause to appeal and dismiss the appeal substantially on the reasoning of the district court. Kessler v. Deeds, No. CA-95-89-R (W.D. Va. Sept. 19, 1995). We note that Appellant may have suggested in his state habeas petition that his procedural default was due to attorney error. However, we conclude that Appellant failed to bear his burden of proving prejudice as a result of that error either in the state court or in district court. See Murray v. Carrier, 477 U.S. 478 (1986); United States v. Frady, 456 U.S. 152 (1982). Consequently, his procedural default is not excused. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.